1988 P Cr (PLP)

These two Criminal Appeals Nos. 434/65 by Mohammad Ayub Butt and No. 459/65 by Mohammad Azam Butt arise from the judgment of learned Special Judge (Central), Lahore, whereby he on 12‑6‑1965, convicted them under sections 120‑B, 409, P.P.C. read with section 109, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them to three years' R.I. on each count and a fine of Rs.50,000 each, in default thereof further R.I. for 21 years' R.I. each with the direction that the sentences will run concurrently I propose to dispose of them through single judgment.

2. The appellants were working as Cash‑counters in Railway Cash Office, Lahore. The charges against them were that they were party to conspiracy to commit criminal breach of trust and in pursuance to that conspiracy they misappropriated Rs.70,000 on 14‑3‑1957 out of total sum of Rs.2,93,182/2/6 (in the form of cash and cheques) entrusted to Muhammad Azam appellant. They denied the charge and claimed to be tried.

3. To prove its case, prosecution produced 35 witnesses. S.M. Hameed P.W.1 had produced documents as detailed in Ex.P2 to the police. Ghulam Mustafa P.W.2 produced documents mentioned in Ex.P3 to P5 before the police. Tasadduq Hussain P.W.3 stated that on 14‑3‑1957 25 Cash bags were entrusted to Muhammad Azam appellant. He identified the signatures of Muhammad Azam appellant Ex.P6/A on the relevant register Ex.P

6. Haji Ghulam Hussain P.W.5 stated that on 14‑3‑1957, he had received Rs.1,41,075 from Muhammad Azam appellant vide entry Ex.P8/A in register Ex.P

8. He stated that the details of the amount of Rs.1,41,075 are in the handwriting of Muhammad Azam. Taufiq Ahmad Zaidi, P.W.6 stated that he had checked the sheets Exs.P10 and P11 on 14‑3‑1957. Abdul Hamid Qureshi P.W.7 stated that he used to check the earning dates of the Railway stations on the check sheets and that check sheets Exs.P10 and P11 bear his initials. He identified signatures Ex.P10/A, P10/B, P11/A and P11/B 'as of the appellants on the check sheets. Muhammad Rafiq P.W.8 stated that check sheets Exs.P10 and P11 bear the signatures of Muhammad Ayyub appellant. Ghulam Asifa P.W.9 stated that on 14‑3‑1957 Muhammad Ayyub appellant had demanded check sheets from him, so he gave check sheets Exs.P10 and P11 to him. The witness stated that these check sheets were prepared by Muhammad Ayyub and bear his signatures. The witness identified signatures Exs.P10/B and P11/B as of Muhammad Ayyub and signatures Exs.P10/A and P11/A as of Muhammad Azam appellant. The witness stated that on that day Muhammad Azam appellant was anxious to prepare check sheets, so the same were provided to him. Qazi Muhammad Hafeez Ullah, Magistrate, P.W.10 had recorded judicial confession Ex.P12/E of Muhammad Ayyub appellant. He took all precautions to satisfy himself that the confession made by Muhammad Ayyub appellant was voluntary. Sardar Khan P.W.12 stated that on 14‑3‑1957 Muhammad Azam appellant was working at Block No.

17. Currency Notes of the value of Rs.1,41,075 were received on that day as earning of Block No.17. Cash coins of Rs.6/4/6 were also received. Cheques of Rs.81,099/10 and pay order of Rs.l/4/‑ were also received. The total receipt comes to Rs.2,23,182/2/6. He identified the signatures of the appellants on check sheets Exs.P10 and P

11. He stated that Muhammad Azam appellant had signed the check sheets in his presence. Abdul Qayyum P.W.13 stated that letter Ex.P14 was written by Muhammad Azam appellant. He received the letter in envelope Ex.P

15. He delivered letter Ex.P14 and envelope Ex.P15 to Ghulam Rasool, father of Muhammad Azam appellant. Muhammad Saeed Khan P.W.14 is a recovery witness. He stated that Muhammad Ayyub appellant had led to the recovery of leather bag Ex.P15, which contained currency notes Exs.P16/1 to P16/341 of Rs.100 each and two National Savings Certificates Exs.P15/A and P15/B. The currency notes and National Savings Certificates were taken into possession vide memo Ex.P17 attested by him. Khushi Muhammad P.W.15 is a recovery witness. He stated that Muhammad Ayyub appellant had led the police to his maternal‑uncle who produced Rs.7,300 EXS.P18/1 to 434 to the police vide recovery memo. Ex. P

18. Faqir Ullah P.W.16 stated that Muhammad Ayyub appellant had produced telescope Ex. P20, Camera, P21, blue bag P22 and a suitcase Ex.P23 before the police. Riaz Ahmad P.W.17 stated that G.C. Notes list Ex.P.24 bears his signatures. These currency notes were correctly entered and despatched by him. Muhammad Iqbal PW.18 was working as Head Cashier, Goods Office Karachi City. The cash of 11‑3‑1957 was entered by him in C.R. Notes. Exs.P27 and P28 and receipt Ex.P29 were sent to him after the cash was received in Cash Office. He stated that the record portions Exs.P27, P28 and receipt P29 had identical entries, but Ex.P27 was subsequently altered. The actual cash of Rs.1,08,731/5 was altered to Rs.68,731/5/‑. The witness stated that on the reverse portion of Ex.P27, the figure Rs.1,06,094 have not been altered. Bilal P. W .19 was posted as Station Master, Railway Station City Karachi. He stated that Ex.P.30 was the account portion of cash remittance note dated 11‑3‑1957 of Railway Station Karachi City, which bear his signatures. He further stated that a sum of Rs.43,998/14/6 was sent from Karachi to Lahore in a sealed cash bag. Risk Ullah Khan P.W.20 was posted as Station Master Karachi Cantt. He stated that a sum of Rs.11,718/10 was sent from Karachi Cantt to Lahore Cash Office. He stated that Ex.P31 was the account portion sent by him to Cash Office Lahore. Muzaffar Baig P.W.21 stated that according to cash C.R. Notes Ex.P33, a sum of Rs.712/5 were sent on 11‑3‑1957 from Karachi to Lahore Cash Office. S.Ihsan Ali P.W.22 stated that Rs.10,836/11 were sent from Karachi to Lahore Cash Office vide C.R. Notes Ex.P34 which bear his signatures. Nizam Din Kazmi P.W.23 stated that the earning of Railway Booking Office Hotel Metropole Karachi of 11‑3‑1957 was Rs.209/9 which were sent to Lahore Cash Office in a sealed bag. Qamar‑ud‑Din Khan P.W.24 stated that a sum of Rs.6,122/2, Rs.265/1 and Rs.14,544/2 were sent from Booking Office Karachi to Cash Office Lahore in sealed bags, which were received in the Cash Office vide receipts Exs.P43 to P

45. Jamshed Muhammad Khan P.W.25 stated that Rs.1,06,094 alongwith vouchers for Rs.2,140 were sent .from City Railway Station to Lahore Cash Office through sealed cash bags. He stated that alongwith the currency notes, list of the numbers of the currency notes Ex.P24 was also sent. Muhammad Ali Anwar Naumani P.W.26 is Handwriting Expert. He stated that documents Exs.P9, P26 and P27 were tempered with and alterations were made in some figures. The witness further stated that he had compared Exs.P10 and P11 with the specimen writing of Muhammad Ayyub appellant and he was of the opinion that Exs.P10 and P1' were written and signed by Muhammad Ayyub appellant. Abdul Qadir P.W.27 stated that C.R.Notes Exs.P75 and 76 alongwith cash mentioned therein were sent in sealed cash bags to Lahore from Railway Station Karachi Bandar and were received in Lahore Cash Office vide receipts Exs.P77 and

78. Abdul Aziz Bhatti P.W.28 stated that on 14‑3‑1957, he had given 25 sealed cash bags to Muhammad Azam appellant for counting. Muhammad Azam had received this amount vide his signatures Ex.P6/A in register Ex.P

6. He had signed the register in his presence. The witness stated that the receipt of the sealed cash bags was acknowledged by Muhammad Azam appellant on the acknowledgment sweet Ex.P

79. Muhammad Azam had signed the documents in his as well as the presence of Ghulam Hussain P.W. Ghulam Hussain P.W.31 was working as Divisional Cash witness in the Cash Office P.W.R., Lahore. He stated that on 14‑3‑1957 Muhammad Azam appellant received 25 cash bags for counting purpose and singed register Ex:P6 in token of receipt of 25 cash bags in his presence. The witness stated that 25 bags were opened by Muhammad Azam appellant in his presence. The cash recovered therefrom, was entered in register Ex.P9 at page

170. The details of the cash and vouchers recovered were given on pages 170‑171 of Ex.P

9. The certificate Ex.P9/1 is in his hand and signed by him. He stated that tie total of the cash earning comes to Rs.2,93,182/2/6 but after tempering with the figures it has now been shown as Rs.2,23,182/2/6. He further stated that cash remittance notes Exs.P25 to P45, Ex.P75 to P78, all bear signatures of Muhammad Azam appellant and are also signed by him as witness. The witness stated that at the time when he signed Ex.P26, the amount was Rs.75,020/8 and not Rs.45,020/8. The figure "7" was subsequently changed into '4'. The witness further stated that in Ex.P27 at the time when he signed it, the amount mentioned was Rs.1,06,591/5 but subsequently the figure '1' was scored out and it remained as Rs.66,59115/. The witness stated that document Ex.P10 was initialed by him against items at 13 points. The entries in Ex.P11 do not contain his initials although he had signed entries in EX.P

11. The witness stated that the signatures purporting to be of a cash witness on Exs.P10 and P11 are not his signatures. He further stated that in fact amount of Rs.65,932/13/6 was carried forward from Exs:P10 and P11 and after tick marking the entries, he had signed at the bottom. Subsequently, his signatures on Ex.P11 were forged. He further stated that documents EX3.PlO and P11, however, bear signatures of Muhammad Azam appellant as well as Muhammad Ayyub Appellant. The witness stated that receipt portion of the cash remittance notes Ex.P82 bears initial of M,uhammad Azam appellant. He had put his signatures in his presence and had thereby acknowledged the receipt of Rs.75,020/8. The witness further stated that document Ex.P83 was signed by him and Muhammad AFam appellant. Sultan Mehmood, Supervisor Cash, P.W.32 has explained wording of Railway Cash Office. He stated that entry against Block No.17 marked 'X' by the Court 'in red ink indicate that Muhammad Azam appellant was allocated the duties of cash counter on 14‑3‑1957 for: Block No.17 and that Ghulam Hussain P.W.31 was deputed as Division Cash witness on 14‑3‑1957. The witness stated that Muhammad Ayyub appellant was allocated duties of cash counter for Block No. 13 on 14‑3‑1957. He also identified the initial of Muhammad Azam appellant on attendance register dated 14‑3‑1957 and initial of Muhammad Ayyub on attendance register. The witness stated that the document Ex.P79 is the list of cash bags dealt with by Block No.17 on 14‑3‑1957 indicating that 25 cash bags had been received and dealt with by that block. He identified the signatures of Muhammad Azam at portion 'A'. The witness stated that register Ex. P6 and entry marked Ex.P6/A show that 25 sealed cash bags received from Karachi were dealt with by Block No.17'on 14-3‑1957 and the signatures of Muhammad Azam appellant appear against the relevant entries in column No.4. The witness stated that the document‑Ex.P9 is a diary and detail with respect to cash bags opened on~1‑14‑3‑1957 are given at pages 170‑171 thereof which are Ex.P9/C and P9/b. The witness proved the documents Exs.P26 to P29 and explained 'the entries made therein. He identified the signatures of the appellants, on the documents. The witness stated that grand total of currency, notes and cheques, etc. were tempered with and the figures Rs.2,93;182/2/6 was changed into Rs.2,23,182/2/6. The witness also identified the handwriting of Muhammad Ayyub and Muhammad Azam appellants on cash check sheets Exs.P10 and P

11. The witness also proved documents Exs.P30‑P45, P75‑P

77. He identifed the signatures of Muhammad Azam appellant on the documents. Nisar PW33 stated that he was Assistant Station Master Kimari on 11‑3‑1957. He sent a sealed bag containing Rs.41,834/2 in cash and vouchers of the value of Rs.32,287/11 to the cash office which were received there vide receipt portion Ex.P

83. Ch. Aziz Ahmad, Inspector, P.W.35 had investigated the case and effected recoveries from Muhammad Ayyub appellant. He had also moved application Ex.Pll to A.D.M. Lahore, for recording confession of Muhammad Ayyub appellant. The witness stated that on 11‑6‑1957 Muhammad Sadiq, maternal‑uncle of Muhammad Ayyub appellant had produced a machine which was taken into possession vide memo. Ex.P84 attested by him. The rest of the evidence is of formal nature.

4. When examined under section 342 Cr.P.C. the appellants denied all the incriminating circumstances. In defence they prodcued 6 witnesses. Rehmat Ullah D.W.1 stated that the cash counters were not allowed entry into the balance room, where the cash is received. The cash counter sends his cash to the balance keeper concerned, who sits in the Balance Hall. The check sheet Clerks sit at a distance from the cash counter and they are not visible to the cash counters. Qamarul Hassan D.W.2 stated that the recovery memo Ex.P17 is signed by him but Muhammad Ayyub was not with the police at the time of the alleged recovery and that he had signed the recovery memo on the asking of Ch. Aziz Ahmad, Inspector S.P.E., P.W.35. Muhammad Sadiq D.W.3 is the maternal uncle of Muhammad Ayyub appellant. He stated that Ch. Aziz Ahmad Inspector had obtained Rs.7,300 from him fraudulantly. He stated that the money given by him to Ch. Aziz Ahmad Inspector belongs to him. Ghulam Rasool D.W.4 stated that the police had searched his house in his absence and took away some savings certificates. Muhammad Daud D.W.5 made similar statement. Muhammad Azhar D.W.6 is brother of Muhammad Azam appellant. He stated that his father Ghulam Rasool D.W. had purchased two savings certificates in his (witness) presence in Chittagong and had affixed his signatures at two or three places.

5. The trial Court while believing the prosecution evidence and disbelieving the plea taken by the appellants as well as the statements made by defence witnesses, has convicted and sentenced the appellants as stated above.

6. Learned counsel for the appellants contended that the prosecution has not been able to prove its case beyond reasonable doubt; that the oral evidence as well as documentary evidence produced by the prosecution fails to connect the appellants with the commission of crime; that the prosecution evidence is not reliable and that the trial Court has not given satisfactory reasons for believing prosecution evidence and for disbelieving the defence evidence. Learned counsel for the appellants has vigorously maintained that in view of the working function of Railway Cash Office contained in the Manual of Cash Office, 1952 and also explained by Sultan Mehmood P.W.32 and Rehmat Ullah D. W. 2, there was no possibility of any pre‑arrangement between the two appellants and it was not possible to take money out of the Counter Hall and misappropriate the same.

7. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

8. I have anxiously attended to the arguments advanced by the learned counsel for the parties and have reviewed the entire oral as well as documentary evidence that has been produced by the prosecution, the statement made by the appellants under section 342, Cr.P.C. and defence evidence, carefully. I have also examined Railway Manual of Cash Office, 1952. I have not been able to persuade myself to agree with the learned counsel for the appellants. I find that from oral as, well as documentary evidence produced by the prosecution and judicial confession made by Muhammad Ayyub appellant on 21‑5‑1957, the charges stand brought home to the appellants beyond shadow of doubt. Muhammad Ayyub appellant was produced before Muhammad Hafeez Ullah, Magistrate, P.W. for recording his judicial confession. The learned Magistrate took all pre‑cautions to ensure the voluntary nature of the confession. He put various questions to Muhammad Ayyub appellant and when he was satisfied that the accused was making confession voluntarily, he recorded his confession Ex.P12/E. In his confession Muhammad Ayyub appellant has told the method which they adopted to frustrate, the working of Cash Office He stated: The statement made by Muhammad Ayyub appellant in judicial confession furnishes satisfactory answer to the arguments of the learned counsel for the appellants that in view of the working of Cash Office, it was not possible for the appellant to bring the money out of the counter hall. There can be no two opinions that where there is an intention to commit a crime, there are ways to accomplish I do not see any reason to disbelieve the judicial confession made by Muhammad Ayyub before Muhammad Hafeez Ullah, Magistrate. From the trend of the reply given by Muhammad Ayyub to the questions put to him by the Magistrate, I am satisfied that he had made statement EXh.V12/E voluntarily and in view of the reliable ocular and documentary evidence produced by the prosecution, it appears that the judicial confession I made by him involving Muhammad Azam appellant is also true. The l prosecution witnesses except police officials are all the employees of Pak. Railway. They had no enmity to involve the appellants falsely in the case. Their statements are based on the documents details whereof have already been given in the early part of the judgment.) The documents produced by the prosecution are not open to question. From the statements of Tasadaq Hussain P.W.3, Abdul Aziz P.W.28, Ghulam Hussain P.W. 31 and register P. 6 containing signature P.6/1 of Muhammad Azam appellant, it is very much established that total sum of Rs. 2, 93,182‑2‑6 (in the form of cash and cheques) was entrusted to Muhammad Azam appellant. On the examination of judicial) confession Exh.P.W.12/E made by Muhammad Ayyub appellant, statement of Ghulam Asifia P.W.9, entries in register Exh.P.8, cheque sheets Exs.P.10 and P.11 which bear signatures of both the appellants, C.R. Notes Exs.P.27, P.28 and receipt Exh.P.29, the forgeries and changes made in C.R. Notes Exh.P.9, P.27 and P.28 as stated by Muhammad Ali P.W., the statement made by the handwriting expert that cash sheets P.10 and P.11 were in the handwriting of Muhammad Ayyub and the detailed statement made by Ghulam Hussain P.W.31, I am convinced that Muhammad Azam appellant in pursuance to the conspiracy between him and Muhammad Ayyub appellant had committed criminal breach of trust with respect to Rs.70,000 and thereafter the appellants criminally misappropriated the same. The defence evidence does not rebut the prosecution case, the oral and the documentary evidence produced by the prosecution. The prosecution witnesses are quite independent. Their statements find support from genuine documents. The statements made by the prosecution witnesses do not suffer from any infirmity. The trial Court has applied its conscious mind to the evidence on record and has given sound and cogent reasons in support of its decision. On my independent assessment of the evidence, I am fully convinced that the prosecution has successfully proved its case against the appellants and there remains no doubt that the appellants had committed the offences with which they were charged.

8. This brings me to the question of sentence. Learned counsel for the appellants argued that the appellants have lost the jobs; that they have suffered the agony of protracted trial and it would not be proper to send them to jail after about 30 years of the occurrence. I have considered the question of sentence with utmost care on m ly part. I find that the appellants had criminally misappropriated Rs.70,000 in the year 1957; that the offence under section 409, P.P.C. is punishable with imprisonment for life and fine and as such the sentence of three years' R.I. and the fine awarded by the trim Court, is neither harsh nor excessive.

9. For what has been said above, the appeal filed by Muhammad Azim and Muhammad Ayyub against their convictions under sections) 120‑B, 409/109, P.P.C. and section 5 of the Prevention of Corruption Act, 1947 and sentences awarded by the learned trial Court, is dismissed. The statements will surrender themselves before the learned Special Judge (Central) Lahore within two weeks. In case, they do not surrender, the learned Special Judge (Central) Lahore will get them arrested. On arrest they will be sent to jail to serve the sentence. Resultantly Criminal Miscellaneous No. 3048‑M/1965in Criminal Appeal No. 434/65 fails. M.Y.H./M‑596/L Appeals dismissed.